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Author Topic: What would you do? Legal question  (Read 3703 times)

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Microbius

« on: April 20, 2011, 06:32 »
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I found one of my images used on the reverse of some packaging by a major food manufacturer last xmas, in fact one of the best known in the world.
I wrote them a polite email asking where they purchased the license from and what the print run of the item was just for my records (there was no tag line for the image, can't recall if IS requires this?).
A month later I get a reply saying they bought an extended license from IStock.
Now the image is a Christmas one I have had on line for several years. It has only ever had two extended licenses sold at IStock, one of which, suspiciously, was sold the day before the letter was printed, the other several years ago.
It is also a very odd time of year to be selling Christmas images, so I guess it's pretty clear what's happened.
I have not registered said image with the US patents office, but I think any legal case could be pursued in the UK, so I guess thus isn't necessarily an obstacle (?).

What would you do in a similar situation? Count yourself lucky that you managed to catch this one and at least get the extended license sale, or pursue it further?


« Reply #1 on: April 20, 2011, 07:16 »
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IS would only make them buy the EL after the fact, so if they did, there's not much to be gained.

Microbius

« Reply #2 on: April 20, 2011, 07:51 »
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I figured IS wouldn't really go to bat for me anyway as I am not exclusive, I was really wondering if it was worth me going after them myself.

I guess one question is whether they had bought a standard license before and just "upgraded" it, or whether it was one of their designers pushed for time claiming it was their own work (it's a vector illustration). I am more inclined to right it off if it's the former.

If they were using it completely illegally with no licence at all I'd sway more towards getting a lawyer involved.
I don't suppose you have any idea about the level of settlement that might be involved in these sorts of cases?

« Reply #3 on: April 20, 2011, 09:03 »
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I figured IS wouldn't really go to bat for me anyway as I am not exclusive, I was really wondering if it was worth me going after them myself.

I guess one question is whether they had bought a standard license before and just "upgraded" it, or whether it was one of their designers pushed for time claiming it was their own work (it's a vector illustration). I am more inclined to right it off if it's the former.

If they were using it completely illegally with no licence at all I'd sway more towards getting a lawyer involved.
I don't suppose you have any idea about the level of settlement that might be involved in these sorts of cases?

I agree with Sean.

In any legal case you need to provide some sort of proof what they did. The magnitude (damages) are not big enough IMO that a judge would send out a court order to iStock to have their books opened, to reveal the 2 buyers for the ELs.

Now if you knew 100% that the second buyer was that company and it came to trial I'm sure the judge would ask you what else you want from the company besides the payment of the license which they paid for correctly (after you showed them that they are on your watch list).

After all, you finally received what you were entitled.

To drag companies of that size to court (which most likely wouldn't happen anyway) you also need to know where their jurisdiction is and you have to get a lawyer there.
That could imply that you would have to travel there for meetings, court hearings etc.

Don't forget you need to pay a lawyer upfront for their services (also very costly), especially when the company doesn't appear very cooperative and would like to see you in court as this will cost you a lot more on top of that.

I've had a few images stolen, printed and resold on large car decals by a printing company here in the US where I live. I had a lawyer on contingency working on the case (in another state where the company is located). The company simply wouldn't respond to the letters of the lawyer and wanted to hard ball it to go to court, because they knew it's very unlikely that things like this ever go to court unless you have too much money on your hands to pay a lawyer. Needless to say that I never got anything out of it.

In fact they were infringing copyrights of Ford, Chevrolet, MBA, NBA, NFL, Playboy, Mattel, Toyota and many many more which I contacted to let them know about it. Some companies responded to me that they appreciated the notification of those infringements and even confirmed them to me. BUT the printing company is still doing business as usual until today.

I managed to get them to remove my images from their web sites (6 of them, all different registrars and web hosts). They knew exactly what they were doing.
It was quite frustrating to say the least...

Be happy that you got your EL!

« Reply #4 on: April 20, 2011, 09:09 »
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Maybe you can get a consult with an attorney without spending too much money up front...he/she should be able to tell you if it is worth both of your's time.

Microbius

« Reply #5 on: April 20, 2011, 09:12 »
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How depressing!
Sounds like the consensus is that it's not worth the hassle.
Oh well, I guess people are pretty much free to steal images and use them as they please with no fear of getting penalized.
I guess we should be grateful that someone is kind enough to actually bother paying for the images at all!

« Reply #6 on: April 20, 2011, 09:29 »
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I figured IS wouldn't really go to bat for me anyway as I am not exclusive, I was really wondering if it was worth me going after them myself.

---------------------------------

If the company had purchased the image through Istock, I'm sure Istock would have gone after them for the EL as its a lot of money in Istock's pocket even though you are independent.  Not really going to bat for you, but outcome would have been the same :-)

« Reply #7 on: April 20, 2011, 09:40 »
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... I guess we should be grateful that someone is kind enough to actually bother paying for the images at all!

Abso-freaking-lutely!!!

lisafx

« Reply #8 on: April 20, 2011, 09:52 »
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Well, you have to weigh the hassle of pursuing it further with what you are likely to gain, particularly on an unregistered image. 

Since they have (finally) purchased the correct license, it seems like case closed to me. 

Not that it is right.  This is why we pay agents, to police our images for us, but it doesn't seem to work out that way. 

« Reply #9 on: April 20, 2011, 15:18 »
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if I were a judge and the claimer proved the company only purchased the correct license after they got your email, I would make the company pay a fee.

If you rob my car but return it to me after I complain, that doesn't stop you from being a robber.
« Last Edit: April 20, 2011, 15:20 by madelaide »

« Reply #10 on: April 20, 2011, 15:49 »
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if I were a judge and the claimer proved the company only purchased the correct license after they got your email, I would make the company pay a fee.

If you rob my car but return it to me after I complain, that doesn't stop you from being a robber.

I like this comparison. However, in any legal action you have to show financial loss or other kind of damage. In case of goods stolen from the car and then returned, there is no loss or damage to you. Now, the act of stealing is illegal, but you have to have a solid proof that it actually happened.

I had a very similar case to OP's. We found a greeting card with my image and weren't sure if the card company bought the right license. After we emailed them, they bought an extended license right away, within hours of receiving our inquiry. So they were using just regular license for the card before, which was wrong. But we decided just to let it go - what kind of damage or loss can I claim at this point?

« Reply #11 on: April 20, 2011, 15:56 »
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...what kind of damage or loss can I claim at this point?

Right, what kind of damage or loss could we photographers EVER claim?

The lawyer in my case asked me the same: "What was your damage?".

I said copyright infringement or misrepresentation of copyright ownership. What's that worth? My reputation? What's my reputation worth? How the heck do I know?

I wonder how those "damages" are ever calculated.

Maybe someone has a link to such a case for review.

« Reply #12 on: April 20, 2011, 16:06 »
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...what kind of damage or loss can I claim at this point?


Right, what kind of damage or loss could we photographers EVER claim?

The lawyer in my case asked me the same: "What was your damage?".

I said copyright infringement or misrepresentation of copyright ownership. What's that worth? My reputation? What's my reputation worth? How the heck do I know?

I wonder how those "damages" are ever calculated.

Maybe someone has a link to such a case for review.


Seems like the attorney should be able to help you come up with a formula for figuring out how much money you might have lost.

Here's a very simple link from Purdue University for copyright infringement:

http://www.lib.purdue.edu/uco/CopyrightBasics/penalties.html

Here's another that says about the same thing:

http://copyright.laws.com/copyright-infringement/copyright-infringement-penalties

« Reply #13 on: April 20, 2011, 17:15 »
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About 2 years ago I had an image of mine of the Magma Hotel in Superior Az stolen by a rock group in Eastern Europe somewhere named "Magma Hotel". They used it on one of their best selling CDs as a cover shot. I emailed them my, ahem, displeasure and got back an email that said they didn't know where the image came from. I sent them a copy of the original image showing them it was identical. I also offered to re-do their CD cover (they had really butchered the image--probably stole it off my web site as no stock site has it) in exchange for a minimum fee of $25. That was the last I heard from them. Needless to say it would be folly to spend a nickel to try for some "damage" claim.

*, I thought I had forgotten about this.

« Reply #14 on: April 20, 2011, 17:15 »
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Thank you for the links - nice to know. However still I don't understand how can someone pay me even 200 dollars for infringement if my revenue loss is only 28 dollars - it just doesn't make sense.

« Reply #15 on: April 20, 2011, 17:19 »
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About 2 years ago I had an image of mine of the Magma Hotel in Superior Az stolen by a rock group in Eastern Europe somewhere named "Magma Hotel". They used it on one of their best selling CDs as a cover shot. I emailed them my, ahem, displeasure and got back an email that said they didn't know where the image came from. I sent them a copy of the original image showing them it was identical. I also offered to re-do their CD cover (they had really butchered the image--probably stole it off my web site as no stock site has it) in exchange for a minimum fee of $25. That was the last I heard from them. Needless to say it would be folly to spend a nickel to try for some "damage" claim.

, I thought I had forgotten about this.

Well this was clearly infringement and according to the links they'd be liable for paying court expenses, no? But then I wouldn't wanna deal with legal system in Eastern Europe, too:) 

« Reply #16 on: April 20, 2011, 17:40 »
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If buyers only have to buy the correct license when they are busted, that is a messed up system. Sort of like shoplifting is legal but if you are caught you have to pay for the item. There should be some sort of penalty to discourage this action.

In most cases the hassle probably isn't worth what you could get for microstock pics, but if the pockets are deep and you can nail them maybe you could get something. Don't bother if it is from IS though, because they will want to take their monstrous cut of anything you recover.


« Reply #17 on: April 20, 2011, 18:07 »
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if I were a judge and the claimer proved the company only purchased the correct license after they got your email, I would make the company pay a fee.

If you rob my car but return it to me after I complain, that doesn't stop you from being a robber.

I like this comparison. However, in any legal action you have to show financial loss or other kind of damage. In case of goods stolen from the car and then returned, there is no loss or damage to you. Now, the act of stealing is illegal, but you have to have a solid proof that it actually happened.

That's why I said "if the claimer proved".

I don't believe there is any rule for the damage compensations, I don't even know if this can be called damage compensation, as it should be actually a penalty for not doing things the legal way.

If I own a company and MS finds out I have 50 computers running pirate copies of Windows and Office, would my penalty be simply buying the legal copies? MS might accept that as a settlement, but legally speaking, is that all they could claim?

ShadySue

« Reply #18 on: April 20, 2011, 18:08 »
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About 2 years ago I had an image of mine of the Magma Hotel in Superior Az stolen by a rock group in Eastern Europe somewhere named "Magma Hotel". <snip>
, I thought I had forgotten about this.
You never forget where you bury the hatchet.

« Reply #19 on: April 20, 2011, 18:11 »
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About 2 years ago I had an image of mine of the Magma Hotel in Superior Az stolen by a rock group in Eastern Europe somewhere named "Magma Hotel"
That is another type of problem: taking a lawsuit abroad is almost impossible, undoable moneywise.

« Reply #20 on: April 21, 2011, 01:30 »
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The legal system can be really annoying.  I don't like it when a business can do something illegally and they can get away with it because the legal system is too cumbersome.  Wouldn't it be better if there was a set fee for using an image without the appropriate license?  The onus should be on the buyer to prove they purchased a license before using the image.  As this goes on all the time, it would be great if we could just send them an invoice for a set amount that they were obliged to pay.  If only the world worked like that.

Perhaps if this keeps happening, RM will make a comeback, as we will have a much easier time proving the appropriate license wasn't purchased.

Uncle Pete

  • Evidence please...

« Reply #21 on: April 21, 2011, 01:41 »
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If buyers only have to buy the correct license when they are busted, that is a messed up system. Sort of like shoplifting is legal but if you are caught you have to pay for the item. There should be some sort of penalty to discourage this action.

In most cases the hassle probably isn't worth what you could get for microstock pics, but if the pockets are deep and you can nail them maybe you could get something. Don't bother if it is from IS though, because they will want to take their monstrous cut of anything you recover.

You got it. They can buy the wrong license and use the image improperly and if they get caught, they pay the rest of the $23 or whatever it is on an agency level. We find it and they say, oops. we made a mistake. The cost of taking them to court, getting an attorney and the resulting income, doesn't balance. It's not the same as something major, and once notified they just buy the right license and the case is closed. Even a letter from an attorney will cost you $50 at the very least.

You can't prove their intent. Also they obtained the right license upon discovery of "their error". Case closed.

For this reason and more, I never upload anything important or valuable, IMHO, to Micro. There are thieves, security problems, people who will misuse any image including against the license contract, and we have the strength of a limp noodle backing our rights. Agencies have no clue unless someone is an exclusive, they can't waste time chasing vague and uncertain claims, when no one knows where the license or image came from. Part of the, all the same images on virtually all the sites.

Want to sell images for pocket change, then the buyers will treat us with the same disdain as the plastic junk you find at a dollar store.

Perceived value has much to do with how people will treat the legal issues and the product. It's not something they stole, it's just a bunch of electrons, arranged in an organized manner. Doesn't matter that it took thousands of dollars of euipment, maybe years of training and effort, time and editing to produce an image. To them, it's just a picture on the web. Devalued by millions of other cheap images or free, available on the web.

Anyone will have a hard time making a case, let alone bringing one, over a microstock image.

Microbius

« Reply #22 on: April 21, 2011, 02:00 »
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I thought that if someone was caught they could be liable for punitive damages.
This is why Getty sends out all those letters asking for thousands of dollars and refuses to allow the retrospective purchase of licenses in these cases.
Precisely for the reason posted by madelaide above, you can't steal something then just pay for it if you are caught. You get punished as well as having the item taken away. Like in this case:
http://www.pdnonline.com/pdn/news/After-Flouting-Print-1163.shtml

"HMH  .... argued.... even if it did infringe, all it owed was the difference between the license fee it paid for 40,000 copies, and the licensing fee it would have had to pay for 1 million copies. Seidman likens that argument to that of a "shoplifter who gets caught and says, I guess I'll have to pay for the merchandise, and we'll call it even. And by the way, I demand the quantity discount price that you give to honest customers."

The judge also rejected the argument, ruling that HMH was liable for not only the license fee but damages in the form of its profits from the infringing publications. HMH's response to that was that  Wood's pictures contributed nothing to the profits because they were insignificant and added no value to its publications.

But the judge wasn't fooled. "If images were truly 'immaterial'.... HMH surely would not be paying to include those images....."

So according to this argument, damages should also take into account profit made by the infringer using the images.
« Last Edit: April 21, 2011, 02:08 by Microbius »

Uncle Pete

  • Evidence please...

« Reply #23 on: April 21, 2011, 02:15 »
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Logically you may have some good points. Legally?

Here's the short answer.

Find an attorney that will give you a meeting for free or a friend who's an attorney who will take ten minutes. Have the complete facts, laid out in an organized manner, that means have your prices, sales, licenses and everything right there, easy to read. Who did it, and how much the license costs. Also don't forget to mention that they bought a license after the fact.

We represent biased personal opinions. They are attorneys.

Please come back and tell us what you found out. It would answer the question for a couple hundred other people who might find themselves in similar situations.

My guess is, there's nothing you can do, after the offender corrected their mistake, as soon as they were notified.


I thought that if someone was caught they could be liable for punitive damages.
This is why Getty sends out all those letters asking for thousands of dollars and refuses to allow the retrospective purchase of licenses in these cases.
Precisely for the reason posted above, you can't steal something then just pay for it if you are caught. You get punished as well as having the item taken away. Like in this case:
http://www.pdnonline.com/pdn/news/After-Flouting-Print-1163.shtml

"HMH  .... argued.... even if it did infringe, all it owed was the difference between the license fee it paid for 40,000 copies, and the licensing fee it would have had to pay for 1 million copies. Seidman likens that argument to that of a "shoplifter who gets caught and says, I guess I'll have to pay for the merchandise, and we'll call it even. And by the way, I demand the quantity discount price that you give to honest customers."

The judge also rejected the argument, ruling that HMH was liable for not only the license fee but damages in the form of its profits from the infringing publications. HMH's response to that was that  Wood's pictures contributed nothing to the profits because they were insignificant and added no value to its publications.

But the judge wasn't fooled. "If images were truly 'immaterial'.... HMH surely would not be paying to include those images....."

So according to this argument, damages should also take into account profit made by the infringer using the images.

lthn

    This user is banned.
« Reply #24 on: April 21, 2011, 03:08 »
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Agreed with most of the above, the situation is pretty nasty, most big companies can safely rely on the fact that people can't finance going thru with legal action. This is one of the many failures of democracy in capitalism. Maybe if you suffered some 'physical trauma', you might even have a chance of getting rich. Try falling off the chair out of shock from the copyrioght infringement, or maybe a nervous breakdown... and have a friendly doctor check you out : }


 

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